Schools are subject to an often-conflicting array of gun regulations from three levels of government.
Educators and parents want schools to be safe places for children. And as the PDK national poll has shown, parents overwhelmingly believe that their children are safe at school.
But tragedies do occur, such as the mass murders at Columbine High School in 1999 and Sandy Hook Elementary School in 2012 and, more frequently, attacks on individual students, often involving guns and other weapons. In every instance, such violence shakes all of us to the core, prompting us to ask what more we can do to protect our students.
In their efforts to respond to public concern about safety at school, however, policymakers have taken conflicting actions — sometimes, they try to remove guns and other weapons from public spaces; other times, they try to reduce restrictions on gun ownership.
In this case, as with many other issues, schools and districts are subject to regulation by all three levels of government.
At the federal level, two laws restrict the possession of firearms in and near K-12 schools: the Gun-Free School Zones Act, 18 U.S.C. 921. et seq. (1990) and the Gun-Free Schools Act, 20 U.S.C. 7151 et seq. (1994).
The first law, the Gun-Free School Zones Act, was sponsored by then-Sen. Joe Biden and signed into law by President George H.W. Bush as part of the Crime Control Act of 1990. It prohibits the possession of a firearm within 1,000 feet of the grounds of a public, parochial, or private school.
In 1995, in U.S. v. Lopez (514 U.S. 549), the U.S. Supreme Court found the act unconstitutional, holding that Congress had overstepped its authority. The federal government has limited powers and may not directly regulate education since the U.S. Constitution did not give it that power. Most federal regulation of education (and there is a lot of it) is indirect, channeled through Congressional ability to spend for the general welfare. Congress spends federal funds and then attaches strings to the money, which is, in effect, a means of regulating through the back door. However, the Gun-Free School Zones Act offered only regulation itself, without the allocation of conditional funds.
In Lopez, supporters of the act argued that it should be ruled constitutional given the federal government’s authority to regulate interstate commerce. Having guns in and around schools will lead to violent crime, they argued, and violent crime has a negative effect on interstate travel and commerce. By a 5-4 vote, the court ruled that the connection to interstate commerce was too tenuous to allow Congress to invoke its authority to regulate.
In 1996, following the Lopez decision, Congress re-enacted the Gun-Free School Zones Act, correcting the defect by limiting the application of the law to any firearm “that has moved in or that otherwise affects interstate commerce.”
The revised Gun-Free School Zones Act, which is still in effect today, includes specific exceptions. Possessing a gun on school property is permitted:
- For individuals who are licensed to possess guns, including those who are licensed to carry concealed weapons;
- If the weapon is unloaded and locked in a container or weapons rack in a motor vehicle;
- If the weapon is carried and used for a school program; or
- If the weapon is carried and used as part of a contract with the school and the individual or the individual’s employer.
The second federal law, the Gun-Free Schools Act (1994), focuses on student behavior and penalizes students for having weapons on school property. As amended in 2002, the Gun-Free Schools Act specifies that states receiving federal education funds must require school districts to adopt policies that expel students for having weapons in school. However, the law spells out some exceptions to this zero-tolerance approach:
- The local school superintendent may modify a student’s expulsion on a case-by-case basis;
- The state may provide education in an alternative setting for students who have been expelled under the policy;
- Special education students do not lose their rights to an education under the policy; and
- Students and staff are permitted to store and lock licensed weapons in a vehicle on school grounds.
Additionally, following the Sandy Hook shootings, President Obama issued a series of executive orders focusing on weapons, mental health issues, and school safety. These include guidelines for first responders, school planning guides for emergency responses, and grant funds for school resource officers.
States have a mix of weapons laws. However, since passage of the first Gun-Free law in 1990, states have dramatically relaxed restrictions on gun ownership and on carrying weapons in public places. Today, every state allows concealed weapons in some form. However, most states still have stringent restrictions on weapons in elementary and secondary schools. (There are fewer state weapons restrictions on college campuses.)
Forty-eight states and the District of Columbia prohibit guns in K-12 schools. (In Hawaii and Missouri, there is no state statutory prohibition, but school districts can enact policies that prohibit guns.) These gun laws have a number of common exceptions:
- Guns lawfully locked in vehicles;
- Guns possessed for a firearm safety course;
- Guns possessed as part of a school-sanctioned program;
- Guns used during military or law enforcement training;
- Lawful possession in a residence within a school zone;
- Lawful hunting on school grounds; and
- Possession that has been approved by school officials.
Thirty-nine states prohibit people who lawfully hold concealed weapons from bringing them to schools, though many states grant an exception for lawful possession of a concealed weapon by an adult who is in a vehicle and dropping off or picking up a student on school property. Eight states (Alabama, Alaska, Arizona, New Hampshire, Oregon, Rhode Island, Utah, and Wyoming) allow people with concealed-carry licenses to have a gun on school property, and three states (California, Hawaii, and Kansas) specifically allow school districts to decide whether to ban licensed concealed-carry weapons in schools.
Every state except for Massachusetts requires that a student who is found in possession of a weapon at school be expelled for one year, consistent with the Gun-Free Schools Act.
Some state legislatures have given school districts the express authority to regulate weapons in schools. In other states, districts have taken steps to regulate weapons without express legislative authority. As long as the local regulation is consistent with state regulations, school policies have been upheld. When the local regulation is more stringent than the state regulation, the outcome is in question.
Some state statutes specifically prohibit local cities, towns, and municipalities from passing their own weapons restrictions. The argument is that a patchwork of inconsistent weapons restrictions confuses residents and does not help law enforcement. But even in these states, school districts may be able to adopt their own (more restrictive) weapons policies.
In a recent case that drew national interest, the Michigan Court of Appeals upheld policies from the Ann Arbor Public Schools and the Clio Area School District that banned possession of dangerous weapons, including firearms, from school property and from school-sponsored activities (Michigan Gun Owners, Inc. v. Ann Arbor Public Schools, Mich. Ct. App. 2016; Michigan Open Carry, Inc. v. Clio Area School District, Mich. Ct. App. 2016). Law enforcement officers were exempted and allowed to carry weapons on school property and at school events. People with concealed-carry permits also were exempted if they had a weapon in their car while they were dropping off or picking up students on school grounds and at school events. However, licensed concealed carriers were included in the ban. In both cases, gun owners challenged the school district, arguing that the state had not given districts the authority to enact their own policies.
In these opinions, the Michigan Court of Appeals noted that school districts are not cities or municipalities, nor are they created by cities or municipalities. Rather, the state legislature creates them, which means that school districts are not local units of government at all. Thus, the Court ruled, school districts are not subject to an existing state statute that prohibits local units of government from enacting their own weapons bans. As to the substance of the school districts’ policies, the court noted that they were consistent with the clear legislative intent to limit weapons on school grounds and at school events. As such, the court upheld both the Ann Arbor and Clio Area School District policies.
The public policy debate will continue as to whether allowing more guns or fewer guns in public places serves to protect individuals from violence. Because schools are an important part of our communities, we can expect that debate to continue to reach into the schoolhouse. But within elementary and secondary schools, the weapons ban, which started with the Gun-Free School Zones Act, continues.
JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is a professor at the University of Wisconsin-Madison.
Originally published in March 2017 Phi Delta Kappan 98 (6), 47-75. © 2017 Phi Delta Kappa International. All rights reserved.